Fair Work Commission upholds “cat and mouse” traffic bullying dismissal after workplace investigation

A recent case before the Fair Work Commission highlights the importance of employers investigating allegations of inappropriate workplace behaviour such as bullying, harassment and discrimination, irrespective of whether a formal complaint is made.

In this matter it is alleged that a mine trainer and two colleagues used their vehicles to box in a hardworking co-worker on a highway on his way home from a mine shift in February 2016. The bullied employee argued that his co-workers smiled and laughed at him as they drove next to him on the highway.

The employer, the subsidiary of a multi-national mining corporation, initiated a workplace investigation immediately after the incident, standing down the employees on full pay while the investigation was undertaken.

Two employees were dismissed and another was given a final warning as a result of the investigation.

The Fair Work Commissioner found that the consequence of the ‘game’ of ‘cat and mouse’ being played was that the employees acted intentionally to prevent the co-worker turning off towards home.

The Commissioner was “particularly (but not exclusively)” persuaded that the incident was intentional by the strong probability that two of the men threw petroleum jelly-covered rags at the bullied employee, with one of the rags hitting him in the head and knocking his helmet off, and then followed him in their cars as he left work. There was also an admission from a colleague that they had played a “joke” on the victim to prevent him from turning right.

During the period of about two years prior to the incident, the Commissioner found that “there is no dispute” that the bullied worker was subjected to the following unreasonable conduct at the workplace:

(a) putting rocks in his bag;
(b) hiding his bag;
(c) painting of workboots and workpants while he was wearing them; and
(d) making jokes at his expense.

The bullied worker did not complain to his employer about this conduct, saying he put up with it and sought to get on with his job. “… I don’t know why they keep playing pranks on me. I don’t know what I am doing or saying that might cause it. I just want to come to work, do what the supervisor tells me, then go home. I don’t want to be the black sheep of the team.”

The bullied employee was unsure why he was specifically targeted but was told to “stop doing what you’re doing, stop working how you do, you’re breaking down our conditions”, suggesting it was probably a reference to his work ethic and the amount of work he completed during his shifts.

One of the dismissed employees, a field maintenance trainer, later argued that he was unfairly dismissed. He argued that the incident was not intentional and that, as the bullied employee did not make a formal complaint, the investigation and probe were flawed.

The Commissioner found that although the employee had not made a formal complaint, the bullied mineworker’s subsequent conduct constituted evidence of bullying on which the employer was obliged to act, noting he informed his superintendent, gave a statement and said he was “happy” to have it taken further.

The Commissioner found that the employer had sound, defensible and well-founded reasons for dismissing the trainer and made reference to the employer’s decision to undertake a detailed investigation into his conduct and the matters he raised.

The Commissioner also accepted that the trio’s conduct before leaving work in “making a plan or agreement” to obstruct his vehicle was not “out of hours conduct”, while their conduct on the highway had a “relevant connection to the employment relationship”. He found the trainer’s conduct in planning the incident was a “clear and patent breach” of his obligations under the company’s code of conduct and its anti-discrimination, sexual harassment and bullying policy that governed behaviour at the site.

The “substantial” policy breaches, his intentional conduct and its effect on the safety and welfare of others provided the company with a valid reason to dismiss him, the Commissioner found, while his receipt of two final warnings and his bullying of another employee were also relevant.

The trainer claimed that he was treated unfairly compared with a fourth colleague who he alleged was also driving unsafely but was not disciplined. But the Commissioner said that colleague had not attempted to harass or box anyone in.

The Commissioner’s comments indicate that the decision to undertake a workplace investigation significantly strengthened the employer’s case. It was beneficial that the employer initiated the investigation immediately after the incident, as this ensured the events were still fresh in the minds of all parties.

The Commissioner also made reference to the fact the company undertook a detailed investigation, gave the trainer “every chance” to participate and respond before making its final decision and afforded him procedural fairness throughout the process

There are many reasons for initiating a workplace investigation when dealing with allegations of inappropriate behaviour. The reasons include:
– That the matter could not be handled objectively if addressed internally, or the organisation does not have suitable skills or resources available
– The in-house HR person feels uncomfortable or unable to undertake the investigation process objectively
– The investigation involves senior employees
– The outcome of the investigation will probably be subject to external review
– It is required by a third party of your organisation such as Workcover